March 31, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 14 C 9899 -
Virginia M. Kendall, Judge.
Manion and Kanne, Circuit Judges and Pepper, District Judge.
is called "the beautiful game, " but the
collective-bargaining process behind the sport can be ugly.
This case matches Plaintiff United States Soccer Federation,
Inc. ("US Soccer Federation"), the national
governing body for soccer in the United States, against
Defendant United States National Soccer Team Players
Association ("Players Association"), the labor
union for members of the Men's National Team, in a
dispute over their current collective bargaining agreement
("CBA") and uniform player agreement
("UPA" and collectively with CBA,
present case kicked off in 2013, when the Players Association
disapproved the U.S. Soccer Federation's proposed tequila
poster advertisement, which contained player images.
Counterattacking, the U.S. Soccer Federation issued a notice,
declaring that the CBA/UPA does not require Players
Association approval for use of player likenesses for six or
more players in print creative advertisements by sponsors,
based on the express terms of the agreement. Crying foul, the
Players Association filed a grievance and demanded
arbitration, arguing that the CBA/UPA does require this,
based on the past practice of the parties.
arbitrator issued an award in favor of the Players
Association. The district court confirmed the
arbitrator's award and granted summary judgment for the
Players Association. The U.S. Soccer Federation appealed. We
begin with a brief synopsis of the relevant provisions of the
CBA/UPA for this case. Then, we summarize the pertinent
factual background and procedural history.
Key Provisions in the CBA/UPA
1997, U.S. Soccer Federation and the Players Association have
negotiated and executed four CBAs. The current CBA was
established in 2011, revised in 2013, and expires in 2018.
(R. 41 Ex. B [hereinafter CBA].)
IV of the CBA incorporates the UP A, which binds all members
of the Players Association, including the Men's National
Team. (R. 41 Ex. B [hereinafter UP A].)
current CBA/UPA is constrained by integration and
no-modification clauses, as well as a non-waiver
provision.The integration and no-modification clauses
provide that the CBA/UPA is "deemed the complete
agreement between the parties" and "no
understanding contained in this Agreement shall be modified,
altered or amended, except by a writing signed by the party
against whom enforcement is sought." UPA § 13(a);
CBA § 7.1. The non-waiver provision states that
"failure of either party to insist, in any one or more
instances, on the performance of any terms or conditions of
this Agreement shall not be construed as a waiver or
relinquishment of any rights granted" by the CBA/UPA.
UPA § 13(c).
V of the CBA outlines the grievance and arbitration procedure
for resolving disputes arising from the "interpretation
or application of, or compliance" with the CBA/UPA. The
scope of the arbitrator's authority is expressly
The decision of the Impartial Arbitrator will constitute
full, final and complete disposition of the grievance, as the
case may be, and will be binding upon the Player(s) involved
and the parties to this Agreement; provided, however, that
the Impartial Arbitrator will not have the jurisdiction or
authority to add to, subtract from, or alter in any way the
provisions of this Agreement or any Uniform Player Agreement.
Furthermore, the Impartial Arbitrator will not have the
jurisdiction or authority to add to, subtract from, or alter
in any way the provisions of any exhibit to this Agreement or
any exhibit to the Uniform Player Agreement unless there is a
conflict or inconsistency between the provisions of the
exhibit and this Agreement or any Uniform Player Agreement,
in which case the Impartial Arbitrator may conform the
exhibit to this Agreement or the Uniform Player Agreement. In
resolving grievances, the Impartial Arbitrator has the
authority to interpret, apply and determine compliance with
any provision of this Agreement, or Uniform Player Agreement
or exhibit thereto and to award monetary damages and/or
declaratory or injunctive relief.
§ 5.8. In short, an arbitrator "has the authority
to interpret, apply and determine compliance with [the
CBA/UPA], " but he cannot "add to, subtract from,
or alter in any way the provisions of [the CBA/UPA]."
the substantive provision at issue in this case is Section 6
of the UP A, which governs the use of player likenesses taken
or created during U.S. Soccer Federation activity. Under
Section 6(b), "[e]xcept as set forth below, [the U.S.
Soccer Federation] may not use or allow others to use
Player's Likeness without the agreement of Player or
Player's representative." One such exception occurs
in Section 6(f)(i), which governs sponsor use of player
likenesses for groups of six or more players:
Six or More Players - Use by Federation Sponsor. If
Player's Likeness is used by a "Partner" of the
Federation (as defined in 6(h)) for any Noncommercial Use or in
a Partner's advertising or promotions, and if the
advertising, promotion, or Non-commercial Use includes six
(6) or more members of any Federation national team
(e.g., team poster or collage), Federation will
request, but not require, the Partner to make a contribution
in an amount to be determined in the Partner's sole and
absolute discretion to the applicable Player Pool(s),
provided however, with respect to any use by a Partner in a
'Spot' (as defined in 6(h)), prior to such use,
Federation shall provide a copy of such Spot to the Players
Association for its approval, which approval shall be
considered in good faith. Such uses by Partners specifically
exclude any Licensing Purposes.
6(f)(i) divides the use of player likenesses into two
categories: (1) non-Spot, which includes
non-commercial video and print creatives, and (2)
Spot, which is defined as commercial video. For
non-Spot advertisements, Section 6(f)(i) provides that the
U.S. Soccer Federation "will request, but not
require" a sponsor donation to a player pool. For Spot
advertisements, Section 6(f)(i) provides that the U.S. Soccer
Federation "shall provide a copy of such Spot to the
Players Association for its approval."
Factual Background and Procedural History
approximately 2001 until 2013, the U.S. Soccer Federation
voluntarily submitted print creatives to the Players